criminal procedure - oliver and the open fields doctrine

Campbell Law ReviewVolume 7Issue 2 Fall 1984 Article 7

January 1984

Criminal Procedure - Oliver and the Open FieldsDoctrine - Oliver v. United StatesT. Michael Godley

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Recommended CitationT. Michael Godley, Criminal Procedure - Oliver and the Open Fields Doctrine - Oliver v. United States, 7 Campbell L. Rev. 253 (1984).

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CRIMINAL PROCEDURE-OLIVER AND THE OPEN FIELDSDOCTRINE-Oliver v. United States, - U.S. -, 104 S. Ct. 1735(1984).

INTRODUCTION

In recent years, uncertainty has arisen concerning the vitalityof the open fields doctrine developed in Hester v. United States.'In Hester, the United States Supreme Court adopted a per se rulethat the protections of the fourth amendment do not apply to openfields.2 The open fields doctrine of Hester seemed to conflict with alater decision, Katz v. United States.- In Katz, the Supreme Courtheld that the "Fourth Amendment protects people, not places."'4

The Court in Katz held the proper test of fourth amendment pro-tections to be whether an individual has a reasonable expectationof privacy which he justifiably relied upon.' In order to end theuncertainty in this area, the Supreme Court has announced its de-cision in Oliver v. United States.

In examining the vitality of the open fields doctrine, this notewill consider the development of the doctrine, the controversycaused by the Katz opinion, and the Oliver decision itself. Weak-nesses in the majority's analysis will be discussed and alternativeapproaches will be given. According to the Supreme Court in Oli-ver, open fields are not entitled to fourth amendment protections,nor are expectations of privacy within those fields deemedreasonable.7

THE CASE

In Oliver v. United States, narcotics agents of the KentuckyState Police received reports that marijuana was being raised onOliver's farm.8 Officers went to the farm and upon arrival drove

1. 265 U.S. 57 (1924).2. Id. at 59.3. 389 U.S. 347 (1967).4. Id. at 351.5. Id. at 353.6. - U.S. -, 104 S. Ct. 1735 (1984).7. 104 S. Ct. at 1741.8. Id. at 1738. (note that Maine v. Thornton, 453 A.2d 489 (Me. 1982), cert.

granted, - U.S. -, 103 S. Ct. 1520 (1983) is consolidated with Oliver v. United

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Godley: Criminal Procedure - Oliver and the Open Fields Doctrine - Oliver

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past Oliver's house to a locked gate with a "No Trespassing" sign."The officers followed a footpath around one side of the gate andcontinued down the road on foot."0 The officers walked severalhundred yards passing a barn and a parked camper. 1 At thatpoint, someone near the camper shouted, "No hunting is allowed,come back here." The officers shouted that they were with theKentucky State Police but found no one when they returned to thecamper. 2 The officers resumed their investigation and located twofields of marijuana over a mile from Oliver's home.' 3 The mari-juana fields, surrounded by other land owned by Oliver, were notaccessible to the public and could only be seen by someone stand-ing on Oliver's farm.'

Oliver was arrested and indicted for manufacturing a con-trolled substance. 5 The District Court for the Western District ofKentucky suppressed evidence of the discovery of the marijuanafields and found that Oliver had a reasonable expectation that thefields would remain private in light of the "No Trespassing" signsand the locked gate.'6 In examining the highly secluded nature ofthe marijuana fields, the court noted that these were not "openfields" that invited casual intrusion."

The Court of Appeals for the Sixth Circuit reversed the dis-trict court.'8 The court of appeals concluded that the open fieldsdoctrine enunciated in Hester was not impaired by Katz. 9 Thecourt reasoned that the Katz application of the fourth amendmentconsidered circumstances that could not have been contemplatedat the time the amendment was adopted, specifically the role ofthe telephone in private communication. The court of appealsstated that the open fields doctrine was compatible with Katz be-cause people do not generally have a need for privacy in openfields and that the property owner's common law right to exclude

States).9. Oliver, 104 S. Ct. at 1738.10. Id. o11. Id.12. Id.13. United States v. Oliver, 686 F.2d 356, 358 (6th Cir. 1982).14. Id.15. 104 S. Ct. at 1738.16. Id.17. Id.18. 686 F.2d at 373.19. Id. at 359.20. Id.

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trespassers is insufficiently linked to privacy to warrant fourthamendment protection.2'

The United States Supreme Court affirmed the decision of thecourt of appeals.2" The Supreme Court concluded that the openfields doctrine in Hester is consistent with the language of thefourth amendment.2 The Court also stated that there can be noreasonable expectation of privacy in open fields under the analysisdeveloped in Katz.' Like the court of appeals, the Supreme Courtnoted that in the case of open fields, the general rights of propertyprotected by the common law of trespass have little or no rele-vance to the applicability of the fourth amendment.25

BACKGROUND

The first clause of the fourth amendment providing, "the rightof the people to be secure in their persons, houses, papers, andeffects, against unreasonable searches and seizures shall not be vio-lated," was held not to extend to open fields in Hester v. UnitedStates.2 6 In Hester, the defendant was convicted of concealing dis-tilled spirits.2 " Revenue officers concealed themselves fifty to onehundred yards away from the defendant's residence and observedHester give another man a quart bottle. Pursuant to their observa-tions and previously reported information, the officers approachedand arrested the defendant.2 8 At trial, the defendant objected tothe revenue officers' testimony concerning their observations of thedefendant but the lower court allowed the testimony.2 9 The defen-dant appealed, contending that his fourth amendment rights wereviolated, 0 but the Supreme Court held that the officers' testimonywas admissible even though the officers had no search warrant andthe observations were made from Hester's land.$' The Court notedthat a trespass on the defendant's land was of little consequence to

21. Oliver, 104 S. Ct. at 1739.

22. Id. at 1735.23. Id. at 1744.24. Id.25. Id.26. 265 U.S. 57, 59 (1924).27. Id. at 57.

28. Id. at 58.29. Id.30. Id.31. Id.

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a finding of illegal search and seizure.3 2 The Court held that whilespecial protection is given to persons, houses, papers, and effects,that protection is not extended to open fields.13 The Court men-tioned the existence of a distinction between an open field and ahouse by noting that the difference is as old as the common law,however, no explanation of the actual difference was given.34

The brief opinion of Hester was followed by Olmstead v.United States.35 The Olmstead decision developed what came tobe known as the "constitutionally protected places" interpretationof the fourth amendment.36 In Olmstead, government officerssecretly tapped telephone company lines and intercepted messagesconcerning a conspiracy to distribute alcohol unlawfully. 7 Thetaps were made in the basement of a large office building and instreets near the houses of the conspirators. No trespass was com-mitted upon any property of the defendants.3 8 The Court held thatthere was no search and seizure in this case. 39 The Court foundthat the language of the fourth amendment covers material thingssuch as the person, the house, papers and effects and may not beextended to cover such things as telephone wires reaching into thedefendant's house. "° The Court held that the fourth amendment isnot violated unless there is an official search and seizure of a per-son, his papers, or tangible material effects, "or an actual physicalinvasion of his house or curtilage 41 for the purpose of making aseizure.'

42

Out of Olmstead and Hester came a tremendous focus onfourth amendment protection of property, yet the action of tres-pass was not deemed a deciding factor in determining the legalityof a search.4' The Court in Olmstead also indicated that any areapast the curtilage would receive no fourth amendment protection."

32. Id.33. Id.34. Id. at 59.35. 277 U.S. 438 (1928).36. Id.37. Id. at 455-456.38. Id. at 457.39. Id. at 464.40. Id. at 465.41. Oliver, 104 S. Ct. at 1742 defines curtilage as, "the land immediately

surrounding and associated with the home."42. 277 U.S. at 466.43. Id. at 465; 265 U.S. at 58.44. 277 U.S. at 466.

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In following cases, the curtilage test was used to determine fourthamendment questions despite the lack of a formal definition ofcurtilage in Olmstead.45

In United States v. Potts, curtilage was defined as "all build-ings in close proximity to a dwelling, which are continually usedfor carrying on domestic employment; or such place as is necessaryand convenient to a dwelling, and is habitually used for familypurposes.""" Such a definition is little help in distinguishing anopen field from curtilage. The Court in Hester noted that the dis-tinction was as old as the common law yet failed to give example.",In search of a workable definition of curtilage, the court in UnitedStates v. Bensigner" cited numerous standards which dealt pri-marily with distance from the main dwelling.4 9 The Bensignercourt concluded that the cases have resulted in a clear rule: "anyoutbuilding or area within seventy-five feet of the house is withinthe curtilage and any outbuilding or area further than seventy-fivefeet is outside the curtilage." 50 With some guidance as to the defi-nition of curtilage, the open fields doctrine of Hester and the pro-tected places approach of Olmstead were interpreted broadly "in aper se manner to any area outside the curtilage."'

This interpretation of the fourth amendment was drasticallychanged by the ruling in Katz v. United States.52 Katz specificallyoverruled the "constitutionally protected places" approach of Olm-stead.53 The Court held, "the fourth amendment protects peoplenot places."5 In Katz, the government conducted electronic sur-veillance of the defendant's telephone conversations in a publictelephone booth.5 The listening device was attached to the outsideof the phone booth. 6 The district court allowed the evidence of

45. Id. at 466; See United States v. Potts, 297 F.2d 68 (6th Cir. 1961);United States v. Whitmore, 345 F.2d 28 (6th Cir. 1965) and United States v. VanDyke, 643 F.2d 992 (4th Cir. 1981).

46. 297 F.2d 68 (6th Cir. 1961).47. Hester, 265 U.S. at 59.48. 546 F.2d 1292 (7th Cir. 1976), cert. denied, 431 U.S. 930 (1977).49. Id. at 1296. See infra Appendix A.50. 546 F.2d at 1297.51. Note, Katz In Open Fields, 20 AM. CRiM. L. REV. 485, 491 (1983).52. 389 U.S. 347 (1967).53. Id. at 350.54. Id. at 351.55. Id. at 348.56. Id.

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Katz's phone conversations and the court of appeals affirmed."The defendant appealed to the Supreme Court alleging violation ofhis fourth amendment rights. 58 After a rejection of the "constitu-tionally protected places" approach, the Court held that fourthamendment protections turn on whether an individual has a rea-sonable expectation of privacy which he justifiably relied upon.5 9

The Court noted that since the fourth amendment protects per-sons and not merely places, the amendment does not turn uponthe presence or absence of a physical intrusion into any givenenclosure.6 0

While the majority in Katz adopted an objective standard,Justice Harlan, in his concurring opinion adopted a subjective ap-proach to the fourth amendment."1 Justice Harlan noted that thereis a two-fold requirement, "first, that a person have exhibited anactual (subjective) expectation of privacy and, second, that the ex-pectation be one that society is prepared to recognize as 'reasona-ble.' ",2 Justice Harlan, like the majority, recognized the plain viewexception to the protection of the fourth amendment.6 3

The Katz opinion drastically redefined fourth amendmentrights. Areas previously not protected now received protection pro-vided the Katz test was met. 4 Under Katz, what an individual"reasonably seeks to preserve as private, even in an area accessibleto the public, may be constitutionally protected."6 5

With the ruling in Katz, considerable doubt was cast upon thecontinued vitality of the open fields doctrine of Hester. In Air Pol-lution Variance Board of Colorado v. Western Alfalfa Corp.,6 6 theSupreme Court supported the open field doctrine after Katz.6 7 Inthat case, a health inspector entered upon the outdoor premises ofWestern Alfalfa Corporation to do some testing of plumes ofsmoke from the defendant's chimneys. The inspector entered no

57. Id.58. Id.59. Id. at 353.60. Id.61. Id. at 360-61.62. Id. at 361.63. Id. See Harris v. United States, 390 U.S. 234 (1968). The Supreme Court

in Harris held that objects falling in the plain view of an officer who has a right tobe in the position to have that view are subject to search and seizure.

64. Katz, 389 U.S. at 353.65. Id. at 351-52.66. 416 U.S. 861 (1974).67. Id. at 865.

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part of the defendant's plant to make the inspection. 8 The evi-dence did not show whether the inspector was on premises fromwhich the public was excluded. 9 The Court found that the inspec-tor was well within the open field exception to the fourth amend-ment approved in Hester.7

In United States v. Allen,7 1 the Ninth Circuit Court of Ap-peals held warrantless aerial surveillance of the defendant's farmto be lawful. 2 The court agreed that "a person need not constructan opaque bubble over his or her land in order to have a reasona-ble expectation of privacy regarding the activities occurring therein all circumstances, 73 yet the court concluded that the defendanthad no reasonable expectation that his barn, vehicles and thetracks leading from the barn would not be noticed by aerial sur-veillance. 4 This ruling came despite the fact that the defendanthad warned trespassers and placed "No Trespassing" signs aroundhis ranch. 5

Despite Allen and Western Alfalfa's support of the Hesterconcept, some courts have held searches of open fields to be unrea-sonable.7 6 In State v. Brady,77 the Supreme Court of Florida ap-plied Justice Harlan's two-prong test and found that the defendanthad an actual expectation of privacy in his open field and that hisexpectation was one that society would accept as reasonable.7 8 InBrady, law enforcement officers responding to a tip, undertook sur-veillance of Brady's property. 9 In order to observe Brady's ranch,officers crossed a dike, rammed through a gate, cut a chain lock on

68. Id. at 864.69. Id. at 865.70. Id.71. 675 F.2d 1373 (9th Cir. 1981).72. Id. at 1381.73. Id. at 1380.74. Id. at 1381.75. Id. at 1377.76. See State v. Brady, 406 So. 2d 1093 (Fla. 1981).77. 406 So. 2d 1093 (Fla. 1981), cert. granted, 456 U.S. 988 (1982), cert.

dism'd in pt., judg't vacated in pt., - U.S. -, 104 S. Ct. 2380 (1984). The writ ofcertiorai as to defendant Brady was dismissed by the Court because the CircuitCourt of Florida, Martin County, accepted the the State's nolle prosequi. Thejudgment as to the remaining respondents was vacated and remanded for furtherconsideration in light of Oliver. 104 S. Ct. at 2380.

78. 406 So. 2d at 1098.79. Id. at 1094.

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another gate and cut or crossed posted fences.8 0 The Brady courtnoted that the open fields doctrine cannot be used as carte blanchefor a warrantless search simply because the location searched isnot part of a dwelling or its adjacent curtilage.8 1 In view of theranch's secluded location, Brady's efforts to keep others away, andsociety's interest in protecting its citizens' privacy when in theirhomes and on their property, the court held that the protections ofthe fourth amendment should be applied to Brady.2

In light of the continuing controversy concerning the vitalityof the open fields doctrine after Katz, the Supreme Court grantedcertiorari in Oliver.83 In the Oliver case, the Court analyzed theopen fields doctrine in light of the Katz opinion.

ANALYSIS

In Oliver, the Supreme Court explicitly reaffirmed the openfields doctrine of Hester.84 The Oliver Court examined the specialprotections of the fourth amendment."' The Court held that thecurtilage or land immediately surrounding and associated with thehome is accorded the same protections that attach to houses.8" TheSupreme Court did not extend fourth amendment protections toopen fields.87 In applying the fourth amendment to the facts in Ol-iver, the Court utilized the objective test found in the Katz major-ity opinion.8 8 The Court held that the fourth amendment does notprotect merely subjective expectations of privacy but only "thoseexpectations that society is prepared to recognize as 'reasona-ble.'"89 The Court held that there can be no reasonable expecta-tions of privacy in open fields.9 0 The Court chose this per se rule ofreasonableness over a case by case determination of reasonable-ness.9 1 The Oliver decision also reaffirmed Hester by holding thatin the case of open fields, the common law property rights pro-

80. Id. at 1095.81. Id.82. Id. at 1098.83. Oliver, 103 S. Ct. 812.84. 104 S. Ct. at 1740.85. Id.86. Id. at 1742.87. Id.88. Id. at 1743.89. Id. at 1740 (quoting Katz v. United States, 389 U.S. 347, 361 (1967)).90. Id. at 1744.91. Id. at 1742-43.

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tected by the law of trespass have little or no relevance to the ap-plicability of the fourth amendment.9 2

Despite its firm holding in Oliver,93 the Supreme Court madeseveral errors in the rationale behind its decision. The most promi-nent errors include the following: the failure to define key terms,the inconsistent application of the Katz test and the use of a perse rule in determining reasonable expectations of privacy in openfields. Many of these errors are pointed out in the dissenting opin-ion by Justice Marshall.9 4

In forming its decision in Oliver, the Supreme Court empha-sized certain terms from the fourth amendment and common law.The terms effects, houses, curtilage and open fields were found tobe of particular importance. 5 The Court examined the history ofthe fourth amendment and concluded that the term "effects" isless inclusive than "property" and cannot be said to encompassopen fields.9 6 The Court noted that the distinction between housesand open fields is as old as the common law.9 7 The Supreme Courtalso noted that the common law considered curtilage98 to be part ofthe home itself for fourth amendment purposes.9 9 The Court re-ferred to curtilage as the land immediately surrounding and associ-ated with the home.100 The Supreme Court held that the commonlaw, by implying that only the curtilage warrants the fourthamendment protections that attach to the home, conversely im-plies that no expectation of privacy legitimately attaches to openfields. 01

Apparently, the Court in Oliver attempted to define openfields by showing that they are not houses, effects or curtilage andthus do not come under the protections of the fourth amendment.This attempt failed because houses, effects and curtilage were

92. Id. at 1744.93. Id. at 1737. The Supreme Court held there can be no reasonable expecta-

tions of privacy in open fields.94. 104 S. Ct. at 1744 (Marshall, J., dissenting).95. Id. at 1740, 1742.96. Id.97. Id.98. Id. at 1742. The Supreme Court gave a common law definition of curti-

lage as "the area to which extends the intimate activity associated with the 'sanc-tity of a man's home and the privacies of life.'" Id. at 1742 (quoting Boyd v.United States, 116 U.S. 616, 630 (1886)).

99. Oliver, 104 S. Ct. at 1742.100. Id.101. Id.

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never properly defined. The Court mentioned that there were sev-eral distinctions between these three terms and open fields butnever set out the distinctions. Curtilage was defined as the landimmediately surrounding and associated with the home. 10 2 Thisdefinition fails to give a practical standard such as the seventy-fivefoot rule found in Bensigner.103 The Supreme Court also failed tosupply a definition of open fields in Oliver. This failure is criticalbecause a specific definition of open fields is necessary to give lawenforcement officials guidelines as to what areas may be searchedwithout a search warrant.

The Supreme Court purported to apply the reasonable expec-tation of privacy test found in Katz to the facts in Oliver.'" IncOn-sistencies appear however in the Court's use of the test. This ismost apparent in the Supreme Court's emphasis of the distinctionbetween open fields and curtilage. Here the Court held that fourthamendment protections do not attach to land outside of the curti-lage.105 This holding seems to be very similar to the protectedplaces approach of Olmstead. The Olmstead Court noted that anyarea beyond the curtilage was not a constitutionally protectedarea.106 Olmstead was specifically overruled by Katz which focusedon privacy interest as the basis of fourth amendment questions."0 7

The Supreme Court also ignored part of the Katz decisionwhen it disregarded the importance of the steps taken by Oliver inpreserving his privacy. The Court in Oliver reasoned that becauseopen fields are accessible to the public and police in ways that ahome, office or commercial structure would not be, and becausefences and no trespassing signs do not effectively bar the publicfrom viewing open fields, the asserted expectation of privacy is notone that society recognized as reasonable.10 8 The Court also notedthat the public and police may lawfully survey lands from theair.109 This line of reasoning is contrary to the Supreme Court'sholding in Katz that "what a person seeks to preserve as private,even in an area accessible to the public, may be constitutionally

102. Id.103. Bensigner, 546 F.2d at 1297.104. Oliver, 104 S. Ct. at 1740-41.105. Id. at 1742.106. Olmstead, 277 U.S. at 466.107. Katz, 389 U.S. at 351.108. Oliver, 104 S. Ct. at 1741.109. Id. See United States v. Allen, 675 F.2d at 1381 (9th Cir. 1981).

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protected."1 ' It is important to note that Katz required only areasonable expectation of privacy and not complete privacy." TheSupreme Court should have considered Oliver's efforts to securehis privacy in determining whether his expectations of privacywere reasonable.1

2

The Supreme Court erred in the adoption of the per se rulethat there can be no reasonable expectation of privacy in openfields. The Court concluded that under a case by case approach,police officers would have to guess before every search whetherlandowners had erected fences sufficiently high, or had posted asufficient number of warning signs to establish a reasonable expec-tation of privacy.13 The Court failed to consider how much timewould be lost by officers following the Court's per se rule in guess-ing how far curtilage extended and where the open field began. 114

Application of the Oliver Court's per se rule appears impossibledue to the Supreme Court's failure to define the terms curtilageand open fields.

By adopting a per se standard, the Supreme Court empha-sized the needs of law enforcement. Apparently the Court forgotits decision in Mincey v. Arizona."5 Mincey held that, "the merefact that law enforcement may be made more efficient can never byitself justify disregard of the fourth amendment.""' A per se stan-dard also comes dangerously close to the protected places approachof Olmstead."7 The per se rule that open fields are not subject toconstitutional protection applies fourth amendment protections onthe basis of places and not on people's expectation of privacy."'

Overall, the majority opinion of Oliver has limited Katz whichheld that the fourth amendment protects people not places. 119 Thisis most evident in the Oliver Court's emphasis of the curtilage as

110. Katz, 389 U.S. at 351 (1967); Note, Katz In Open Fields, 20 AM. CRIM.

L. REv. at 494 (1983).111. Id.112. See Oliver, 104 S. Ct. at 1743. Oliver erected "No Trespassing" signs

and fences on his property.113. Id. at 1742-43.114. Id. at 1750 (Marshall, J., dissenting).115. 437 U.S. 385 (1977).116. Id. at 393.117. Olmstead, 277 U.S. at 466 (1927).118. See Katz, 389 U.S. at 353. The Katz decision holds that the fourth

amendment protects people not places. The per se rule of Oliver is contrary toKatz.

119. Katz, 389 U.S. at 353.

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the cut off point of fourth amendment protections. The OliverCourt's refusal to consider a landowner's steps in preserving hisprivacy is contrary to Katz which examined what a person soughtto preserve as private. 120 Also, the adoption of a per se rule thatthere can be no reasonable expectations of privacy in open fieldscreates a standard impossible to follow and favors law enforcementprocedures over a property owners' fourth amendment rights. 121

Justice Marshall presented a well reasoned dissenting opinionin Oliver. 22 The dissent emphasized a landowner's right to excludeothers from his posted land, the uses to which land is put and theimportance of boundary markers on a person's land. 23 JusticeMarshall noted the importance of common law property rights, theviolation of which can result in a prosecution for trespass. 124 Thedissent did not conclude that property rights are determinative offourth amendment protections, but simply used property rights asa factor in determining whether an individual's expectations of pri-vacy are reasonable. 125 Justice Marshall noted that one who law-fully possesses property will have more of a reasonable expectationof privacy by virtue of his right to exclude others from his prop-erty. 128 The dissent also examined the uses to which property isput in examining a landowner's privacy interest.'27 While the ma-jority mentioned that there are few privacy interests in the growingof crops, the dissent also considered privacy interests in agricul-tural research and business, private wildlife refuges and even walkstaken by landowners in their posted open fields. 128 The dissent em-phasized the term "posted" in determining whether a person's pri-vacy interests in open fields are legitimate. Justice Marshall noted,"[a] claim to privacy is therefore strengthened by the fact that theclaimant somehow manifested to other people his desire that theykeep their distance."'' 9 This distinction between posted open fields

120. Note, Katz In Open Fields, 20 AM. CRIM. L. REv. at 494 (1983).121. See Mincey, 437 U.S. at 393. The Supreme Court held that, "the mere

fact that law enforcement may be made more efficient can never by itself justifydisregard of the fourth amendment."

122. Oliver, 104 S. Ct. at 1745, (Marshall, J., dissenting).123. Id. at 1750.124. Id. at 1748.125. Id. at 1747.126. Id.127. Id. at 1748.128. Id. at 1748-49. The phrase "posted open fields" refers to open fields

marked with no trespassing signs.129. Id. at 1749 (Marshall, J., dissenting).

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and non-posted open fields is most helpful in posing a solution tothe problems created by the majority's opinion in Oliver.

The open fields doctrine may be viewed from the broad ap-proach taken by the majority in Oliver or from the more narrowapproach suggested in the dissenting opinion.130 The majorityadopted a per se rule as to reasonableness of expectations in openfields regardless of whether those fields are open to the public viewor secluded. 3' As discussed above, this approach creates a numberof problems with the defense of common law trespass and one'sfourth amendment rights. The Katz opinion recognized the plainview doctrine as enunciated in Harris v. United States."12 In Har-ris, objects within plain view of an officer who has a right to be inthe position of viewing them are subject to search and seizurewithout a warrant.'33 Through the use of this exception the morenarrow doctrine of open fields may be developed. In this narrowapproach the landowner's precautions in guarding his privacy areextremely important. 34 Undeveloped land is generally deemed tobe open to the public if the landowner has not posted his bounda-ries. "'35 The court in Western Alfalfa held that an official may,without a warrant, enter private land from which the public is notexcluded and make observation from that vantage point. 3 ' A morenarrow approach to the open fields doctrine would be that an indi-vidual has no reasonable expectation of privacy in a field which isopen and accessible to the public. 3 7 This approach would require acase by case determination by police as to whether the precautionstaken by an owner would entitle him to a reasonable expectation ofprivacy. As noted before, this would impede police officers no morethan a determination of where curtilage ends, the test now used inthe broad approach adopted by the majority. 13 8 By using the nar-row approach to open fields, a pure Katz test could be applied be-

130. Id. at 1750-51. Note, Katz In Open Fields, 20 AM. CRIM. L. REV. at 492(1983).

131. 104 S. Ct. at 1737.132. Katz, 389 U.S. at 357; 390 U.S. 234 (1968).133. Harris, 390 U.S. at 236.134. 104 S. Ct. at 1749 (Marshall, J., dissenting); Rawlings v. Kentucky, 448

U.S. 98, 105 (1980).135. 416 U.S. 861 (1974); Oliver, 104 S. Ct. at 1749 (Marshall, J., dissenting).136. 416 U.S. at 865 (1974).137. Oliver, 104 S. Ct. at 1749-50 (Marshall, J., dissenting). Note, Katz In

Open Fields, 20 AM. CRIM. L. REV. at 496 (1983).138. 104 S. Ct. at 1750-51 (Marshall, J., dissenting).

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cause the plain view exception is accepted by Katz and the curti-lage determination would be avoided. A Katz analysis using the"accessible or visible to the public standard" as a factor in assess-ing reasonableness would not require a precise definition of anopen field.139

CONCLUSION

The Supreme Court in Oliver held that an individual has noreasonable expectation of privacy in open fields and is thereforenot entitled to the protections of the fourth amendment. 40 Thisruling came after Katz which greatly expanded fourth amendmentprotections. The Supreme Court in Katz rejected the approachthat the fourth amendment protections only applied to certain ar-eas such as houses or curtilage14 1 and held that the fourth amend-ment protects people not places.14 2 As long as a person has a rea-sonable expectation of privacy, the Court in Katz held that theperson is protected by the fourth amendment even if the person isin an area accessible to the public. 43 The Court in Oliver limitedthe holding of Katz and revitalized the protected places approachin Olmstead v. United States. In order to avoid a step backward infourth amendment protections, the Supreme Court should adopt anarrow approach to the open fields doctrine. The narrow approachto the open fields doctrine would recognize property owners' rightsof privacy on their land yet it would avoid many of the pitfalls ofthe Oliver decision. The adoption of a narrow approach to theopen fields doctrine is more consistent with Katz v. United Statesand the protection of fourth amendment rights.

T. Michael Godley

139. Note, Katz In Open Fields, 20 AM. CRiM. L. REv. at 505 (1983).140. 104 S. Ct. at 1737.141. Katz, 389 U.S. at 351 (1967).142. Id. at 353.143. Id. at 352.

[Vol. 7:253266

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APPENDIX -A

Case Outside WithinCurtilage Curtilage

Care v. United States,231 F.2d 22 one long(10th Cir. 1956). city block

Hassell, 336 F.2d684 (6th Cir. 1964). 750 ft.

Atwell v. United States,414 F.2d 137(5th Cir. 1969) 750 ft.

United States v. Bensinger,546 F.2d 1292(7th Cir. 1976) 400 ft.

Fulibright v. United States,392 F.2d 432(10th Cir. 1968) 150-300 ft.

Hester v. United States,265 U.S. 57 (1924) 150-300 ft.

Brock v. United States,256 F.2d 55(5th Cir. 1958) 150-180 ft.

Hodges v. United States,243 F.2d 281(5th Cir. 1957) 150 ft.

Janney v. United States,206 F.2d 601(4th Cir. 1953) 100 ft.

United States v. Minton,488 F.2d 601(4th Cir. 1973) 80-90 ft.

Walker v. United States,225 F.2d 447(5th Cir. 1955) 210-240 ft.

United States v. Mullin,329 F.2d 295(4th Cir. 1964) 75 ft.

19841

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268 CAMPBELL LAW REVIEW [Vol. 7:253

United States v. Capps,435 F.2d 637(9th Cir. 1970) 40-45 ft.

Wattenburg v. United States,388 F.2d 853(9th Cir. 1968) 20-35 ft.

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criminal procedure - oliver and the open fields doctrine

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